Trump, his lawyers cite expansive view of executive power
By ERIC TUCKER
Tuesday, June 5
WASHINGTON (AP) — President Donald Trump claimed he has an “absolute right” to pardon himself, part of an extraordinarily expansive vision of executive authority that is mostly untested in court and portends a drawn-out fight with the prosecutors now investigating him.
No need of a pardon anyway, Trump tweeted Monday, because “I have done nothing wrong.”
In fact, his lawyers assert in a memo to special counsel Robert Mueller, it’s impossible for him to have done anything wrong in the area of obstructing justice, an issue Mueller has been investigating. That’s because, as the country’s chief law enforcement officer, Trump himself has ultimate control of the Justice Department and executive branch.
Beyond that, his lawyers have repeatedly insisted that it’s beyond dispute that a sitting president cannot be criminally prosecuted.
The legal maneuvering comes as Trump tries repeatedly to undercut the investigation. On Monday, the president tweeted that the appointment of a special counsel was “totally UNCONSTITUTIONAL.” On Tuesday, he called it the “Russian Witch Hunt Hoax” and blamed Attorney Jeff Sessions for allowing it to continue.
“I would have quickly picked someone else” to lead the Justice Department, Trump tweeted of Sessions, who recused himself from the probe last year following reports of his meeting with the Russian ambassador.
Mueller’s investigation is moving forward nonetheless, and as it does courts may have to confront questions with minimal if any historical precedent. Those include whether a president can be forced to answer questions from prosecutors, whether it’s possible for a commander in chief to criminally interfere in investigations and whether a president’s broad pardon power can be deployed for corrupt purposes.
“There’s a reason they’re untested. It’s because they were unthinkable,” said Savannah Law School professor Andrew Wright, who served in the White House counsel’s office under President Barack Obama. “The president’s game here in part is to take issues that are so beyond the pale that they have never been tested and say, ‘Look, there’s no authority here on point.’”
Mueller is investigating whether Trump associates coordinated with Russia during the 2016 presidential election and whether Trump took steps to shut down that investigation through actions including the firing of FBI Director James Comey.
Though Trump insists he did nothing wrong, the statements from him and his lawyers, including the just-disclosed January memo to Mueller, make clear that much of their defense revolves around establishing that he was constitutionally empowered to take the actions he took.
The defense argument suggests that protocols meant to protect against abuses of power are merely norms the American public has come to expect, rather than laws binding on a president.
In Trump’s view, for instance, he is entitled to fire an FBI director — Comey or any other — for any reason. He can similarly terminate an FBI investigation given the constitutional powers he enjoys, the president’s lawyers say. That argument may help ward off allegations from Comey that the president asked him to consider shutting down an FBI investigation into former White House national security adviser Michael Flynn.
There is logic to the argument that Trump couldn’t have obstructed justice by firing Comey, even if the questions haven’t been fully resolved, said Josh Blackman, a professor at South Texas College of Law.
“If you’re trying to apply the obstruction statutes to something the president has the power to do, then I don’t think the statute applies,” he added.
White House spokeswoman Sarah Huckabee Sanders, who was questioned repeatedly Monday about whether the president is above the law, said no, he is not.
But Blackman said that was overly simplistic, that the better question is how the law applies to the president.
“It’s a great slogan, but the law doesn’t treat the president equal in all respects,” Blackman said. “There are certain things the president can do that no one else can do,” such as granting pardons and negotiating international treaties.
There’s some historical precedent for a court clash that could be instigated by the Trump investigation, but in many ways the arguments remain unsettled.
The Supreme Court, for instance, has never definitively ruled on the question of whether a president can be forced to testify, though the justices in 1974 did rule that Richard Nixon had to produce recordings and documents that had been subpoenaed.
Bill Clinton was subpoenaed in 1998 to appear before the Whitewater grand jury, though that subpoena was withdrawn after Clinton struck a deal to give testimony. The agreement headed off a potential challenge to the subpoena on constitutional grounds.
In a 1997 ruling allowing Paula Jones’ sexual harassment lawsuit against Clinton to go forward, Justice John Paul Stevens wrote: “We have made clear that in a criminal case the powerful interest in the ‘fair administration of criminal justice’ requires that the evidence be given under appropriate circumstances lest the ‘very integrity of the judicial system’ be eroded.”
He also said that presidents have given testimony and produced documents often enough that “such interactions … can scarcely be thought a novelty.”
Though Mueller has raised the prospect of subpoenaing Trump if he rejects a voluntary interview, it’s not clear he’ll actually do so. Such a move could theoretically end in a court defeat for Mueller, and would almost certainly prolong the investigation.
The past several days have also spurred arguments about the scope of the president’s pardon power.
Trump has already proved willing to break from protocol through granting pardons outside the Justice Department’s pardon attorney, which historically reviews clemency petitions and makes recommendations on worthy candidates.
On his own, he has recently pardoned conservative Barack Obama critic Dinesh D’Souza, who had pleaded guilty to campaign finance fraud, and former Bush administration White House aide I. Lewis “Scooter” Libby. And Trump said he was contemplating clemency for Martha Stewart and former Illinois Gov. Rod Blagojevich, among “lots” of other people.
A 1974 opinion from the Justice Department’s Office of Legal Opinion maintains that presidents cannot pardon themselves “under the fundamental rule that no one may be a judge in his own case,” though that question has never been tested before the country’s highest court. The opinion does say that if a president were to declare himself temporarily unable to remain in office, the vice president could take over as acting president and pardon the president.
In the end, the Mueller investigation raises significant questions about how to balance a president’s right to manage the executive branch as he believes with the public interest that he be subject to the law.
“Their argument has antecedents that are legitimate about the president’s management of the executive branch,” said Wright, who also served as a lawyer for former Vice President Al Gore. “But they’re taking them well past their logical extremes.”
Associated Press writers Anne Flaherty, Jonathan Lemire and Catherine Lucey contributed to this report.
The Pardon Power: “The Power Not The Right” — What If Trump Shot Melania?
by Kary Love
When I saw media reports Melania Trump had not been seen for 20-some days, I started thinking again about the Constitution, the Pardon Power and the nature of the rule of law. Such are modern times. What if Trump did it? I wondered. What if he had “shot someone on 5thavenue in broad daylight?” What if he had done away with Melania? Could he pardon himself?
I like to rely on the actual language of the Constitution to answer such questions, resorting to writings of the Framers only in the event of ambiguity. Here is the Pardon Power granted by Article II, Section 2 of the Constitution:
The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
Since the Constitution was written for the people, not the lawyers, it is usually pretty easy to read. Clearly the President is granted broad power to pardon anyone for an offense against the US (state crimes for the same act can still be prosecuted), so long as the offense has been committed prior to the pardon, no power is granted to pardon for planned or future offenses. There is no limit in the language on the President’s power to pardon the President himself (except if impeached.) So, I concluded, that if Trump had offed Melania, he could pardon himself and avoid federal prosecution. State law prosecution would still lie for murder.
Many are not satisfied with this result. The Framers knew this defect existed. But they believed the power of clemency to be so important, that giving the power of mercy to the government so essential, because government tended to screw up so badly so often, that acceptance of the defect was necessary to ensure the possibility of mercy.
However, the Framers did not turn a blind eye to this defect. They warned the American people in the Federalist Papers that it was their job to ensure they did not elect a President of such tawdry character, such shameful morals, such disregard for the rule of law, that he or she would be liable to commit a crime and, if having done so, would claim to be above the law applying to all other Americans, and pardon him or herself.
The Framers knew the danger of electing persons of shallow character to high office, they had, after all, dealt with the insanity of George III, and had learned the necessity of avoiding unfit persons. The Framers, and the anti-Federalists who opposed the Constitution as giving the federal government too much power, pointed out that if the American people abandoned common sense and good judgment, and elected as President a person of defective moral insight, dangers to the American people and good government would abound. Hence, the framing generation warned repeatedly: Elect decent, moral people dedicated to serving the republic not themselves or even the Constitution could devolve into tyrannical government. (As an added “protection” against demagogues selling BS to the people, they had the Electoral College actually elect the President). But, no Constitution or law can save the people if they lose their judgment and elect a person of known defective character. Such a people, exercising the hard-won franchise of their ancestors, the Framers knew, would themselves have lost their moral compass and have no one to blame but themselves for their devolution from republic to dictatorship.
Fortunately, the American people are, by and large, a moral people. They are capable of judgment. They know something may be technically legal and morally repugnant. And because most believe moral laws, derived from god, are prior to human law and take precedence over human law, the American People can repudiate legal actions that are immoral. Such as a President who pardons himself for committing an offense against the United States. Sure, the people can say, you have the power, but we decide you do not have the moral right. Impeachment is one response. Vote the slime ball out of office is another. Ratify his immorality and accept the consequences of your decision, the slippery slide into the dark side.
As for Melania, of whom I appear to have lost sight: good luck.
Kary Love is a Michigan attorney who has defended nuclear resisters, including some desperado nuns, in court for decades and will on occasion use blunt force satire or actual legal arguments to make a point.